HAMPTON — A woman who spent 85 days in jail after the charge against her was dropped has filed a $2.35 million federal lawsuit against Hampton’s Clerk of Court and a lawyer with the Hampton Public Defender’s Office.

Rachel Iris Harbeck, 50, formerly of Hampton and now of Newport News, contends that Hampton Circuit Court Clerk Linda Batchelor Smith and Deputy Public Defender William Boyle failed to ensure she got out of jail in a timely way.

Harbeck was being held on a $3,000 bond, so she could have been released after her October 2009 arrest by posting $300 through a bail bondsman. Instead, she spent nearly five months in jail — three of those months after the charges were dropped — and spent the holiday season behind bars.

“Continuing restraints of plaintiff’s liberty were entirely without probable cause or any sufficient legal excuse whatsoever and constituted false imprisonment,” said the suit, filed in U.S. District Court in Newport News by attorneys Kevin Shea and Carter Phillips.

Smith’s and Boyle’s failure to secure Harbeck’s release, the suit asserts, “was occasioned by their total disregard, whether intentional, reckless or grossly negligent in nature.”

Harbeck was arrested Oct. 22, 2009, on a charge of “threatening to burn” her mother’s house, a charge arising from a complaint by Harbeck’s mother. Harbeck was placed in custody at the Hampton Roads Regional Jail in Portsmouth.

But on Dec. 22, 2009, the same day a judge signed off on the case and sent it to a grand jury, a prosecutor wrote to Harbeck’s lawyer, Boyle, telling him that prosecutors would not seek an indictment in the case.

The prosecutor, Assistant Commonwealth’s Attorney Charisse Mullen, sent a copy to Smith and a juvenile and domestic relations court clerk “so that your client may be released of any bond in effect that is related to the above-referenced charge,” she told Boyle.

Mullen said Thursday that she dropped the charge after determining that she didn’t have enough evidence to prove the case beyond a reasonable doubt at the trial stage.

After the charge was dropped, the lawsuit claims, Smith and Boyle never took the necessary steps to ensure Harbeck’s release.

Shea said that Harbeck asked jail officials why she was still being held, and they told her the Hampton court had not released her. Shea said that Harbeck twice wrote to Boyle asking about the matter, but got no response.

Harbeck finally was released on March 19, 2010 — 85 days after the charges were dropped. Phillips said that the release came after Boyle’s boss, Hampton Public Defender James Gochenour, learned of the situation, walked over to the clerk’s office, and set the release in motion.

Harbeck’s suit seeks $2 million in damages, $350,000 in punitive damages, plus plaintiff’s attorney fees. The suit says Harbeck “was deprived of her due process rights,” as well as “her right to be free of excessive punishment” under the Eighth Amendment of the Constitution.

It’s not exactly clear why Harbeck wasn’t released until March.

The case file in Hampton Circuit Court contains an order from Circuit Judge Wilford Taylor Jr. on Jan. 4, 2010, releasing Harbeck from her bond. The court file also includes a Jan. 4 “Disposition Notice,” signed by a deputy court clerk, that says: “No indictment presented. Dismiss.”

Such notices are sent to jails to inform them of the status of a case. A court official said the deputy clerk mailed and faxed the notice to Hampton Roads Regional Jail on Jan. 4.

The case file also includes a fax transmittal sheet from March 19 that shows the notice was faxed to the jail on the March 19 date. The court official said that was the second time the notice was sent, but the first time the fax transmittal sheet was kept in the file.

A jail official did not return a phone call Thursday to determine when the jail first got the notice.

The Circuit Court Clerk is a state constitutional office, with the clerk elected by Hampton residents. Neither Smith nor her lawyer, Lawrence Dumville, would comment on the case.

But in a court filing, Dumville said the lawsuit should be thrown out. Dumville says that Smith isn’t responsible for the actions of her deputies unless it’s shown that she authorized it or showed a “deliberate indifference” to it.

“The complaint states no facts to support a claim that the defendant Smith was in any way directly involved in the alleged unlawful detention of the plaintiff,” Dumville wrote. The filing also claims that Smith is immune from being sued under various provisions of state law.

The Hampton Public Defender’s Office is an arm of the Virginia Indigent Defense Commission, a state agency. Boyle is being represented by Christy Monolo, a lawyer with the Attorney General’s Office.

In a filing, Monolo asserted the Eighth Amendment’s protection from “excessive punishment” is triggered only after someone is convicted of a crime. And she said Harbeck’s lawyers failed to spell out any instances in which Boyle violated Harbeck’s constitutional right to due process.

Boyle did not return phone calls, while Gochenour and Monolo declined to comment.

And now the Legal Disclaimer:

The information in this blog is based only on Virginia law and is not meant to apply in any other state. If you have questions regarding the laws in another state, please contact an attorney who is licensed to practice in that state. This information is also very general in nature. Every case is unique. Please consult with a Virgina attorney for the specfic details of your case.

The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. Thank you.